At a time when the rights of Wabanaki communities are at the center of a controversy between Maine’s Legislature and Maine’s governor, it is illuminating to reread the 1980 Maine Indian Claims Settlement Implementing Act, which is at the heart of the debate. The state of Maine argues that the MICSA relegates the Wabanaki tribes to the status of Maine municipalities, and the news media have often accepted the state’s assertion. In doing so, however, they misread the Maine law and the partnership between tribes and the state that the MICSA reflects. They take the term “municipalities” out of context in order to deny Wabanaki sovereignty in ways that the MICSA does not deny. In the context of the 1980 law, “municipalities” is a simile: First Peoples in Maine are like municipalities in specific areas of governance. This does not mean that they are, became or have ever been municipalities.
A group from the Wabanaki Confederacy drums and sings last April in front of the Maine State House in Augusta. “In 1980 Wabanaki negotiators agreed in limited areas to be governed like Maine municipalities, but – as a matter of law – they did not surrender sovereignty,” Margot Lukens and Tony Brinkley write. Joe Phelan/Kennebec Journal, File
The word “sovereignty” does not appear in either the federal Land Claims Act or the state Implementation Act, but in what way does either act affect the sovereignty of Wabanaki communities in Maine? The Implementation Act does refer to the Passamaquoddy Tribe and the Penobscot Nation as having a status like municipalities in Maine, but while it does so with respect to laws of the state regarding a municipality’s “duties, obligations, liabilities and limitations,” it does so without additional limitations. In specifying “internal tribal matters” that “shall not be subject to regulation by the State,” the MICSA recognizes a partnership with the state that distinguishes Wabanaki communities from Maine municipalities.
One way to approach this difference is to consider the status of the Passamaquoddy Tribe and Penobscot Nation before 1980. It was never undefined. Both had sovereign rights, though that sovereignty was restricted by law because, like all First Peoples, Wabanakis were subject to the power of the federal and state government to impose its laws. Wabanaki sovereignty was nevertheless reflected in treaties that are part of the Maine Constitution but have been omitted in recent, abridged editions. (The insistence on this abridgment by Maine’s governor and others amounts to unacknowledged censorship, but the recognition of Wabanaki sovereignty in Maine’s constitution is clear. The state of Maine does not sign treaties with its municipalities.)
The 1980 Implementation and Settlement Acts explicitly limit sovereignty in specific areas and explicitly recognize sovereignty in other areas in ways that do not apply to Maine municipalities. Not all areas of sovereignty are addressed. The state of Maine has asserted that these unaddressed areas are governed by the state. This assumes that prior to 1980, the state was sovereign in all areas and, through the MICSA, ceded some areas, but this is a misreading of the law and of history.
Negotiations between the state and Wabanakis reflected recognition by the state that the Penobscot Nation and the Passamaquoddy Tribe were sovereign entities with the right and independence to negotiate what amounted to another treaty. Unspecified sovereign rights were not abrogated in the MICSA and, therefore, continued to be Wabanaki rights. The state can deny these rights, given its power to do so, but to assert this is lawful is unjustified – part of a history of relations between the state and Wabanaki peoples that over many years have been manifestly unjust. In 1980 Wabanaki negotiators agreed in limited areas to be governed like Maine municipalities, but – as a matter of law – they did not surrender sovereignty or ever agree that their communities were ever municipalities.
Send questions/comments to the editors.
